103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3098

 

Introduced 2/2/2024, by Sen. Meg Loughran Cappel

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 675/1  from Ch. 23, par. 2357

    Amends the Prevention of Tobacco Use by Persons under 21 Years of Age and Sale and Distribution of Tobacco Products Act. Provides that no person shall cause electronic cigarettes ordered or purchased by mail, through the Internet, or other remote sale methods, to be shipped to anyone in the State other than (i) a distributor, as defined in specified Acts, or (ii) a retailer, as defined in specified Acts. Effective immediately.


LRB103 37194 CES 67313 b

 

 

A BILL FOR

 

SB3098LRB103 37194 CES 67313 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Prevention of Tobacco Use by Persons under
521 Years of Age and Sale and Distribution of Tobacco Products
6Act is amended by changing Section 1 as follows:
 
7    (720 ILCS 675/1)  (from Ch. 23, par. 2357)
8    Sec. 1. Prohibition on sale of tobacco products,
9electronic cigarettes, and alternative nicotine products to
10persons under 21 years of age; prohibition on the distribution
11of tobacco product samples, electronic cigarette samples, and
12alternative nicotine product samples to any person; use of
13identification cards; vending machines; lunch wagons;
14out-of-package sales.
15    (a) No person shall sell, buy for, distribute samples of
16or furnish any tobacco product, electronic cigarette, or
17alternative nicotine product to any person under 21 years of
18age.
19    (a-5) No person under 16 years of age may sell any tobacco
20product, electronic cigarette, or alternative nicotine product
21at a retail establishment selling tobacco products, electronic
22cigarettes, or alternative nicotine products. This subsection
23does not apply to a sales clerk in a family-owned business

 

 

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1which can prove that the sales clerk is in fact a son or
2daughter of the owner.
3    (a-5.1) Before selling, offering for sale, giving, or
4furnishing a tobacco product, electronic cigarette, or
5alternative nicotine product to another person, the person
6selling, offering for sale, giving, or furnishing the tobacco
7product, electronic cigarette, or alternative nicotine product
8shall verify that the person is at least 21 years of age by:
9        (1) examining from any person that appears to be under
10    30 years of age a government-issued photographic
11    identification that establishes the person to be 21 years
12    of age or older; or
13        (2) for sales of tobacco products, electronic
14    cigarettes, or alternative nicotine products made through
15    the Internet or other remote sales methods, performing an
16    age verification through an independent, third party age
17    verification service that compares information available
18    from public records to the personal information entered by
19    the person during the ordering process that establishes
20    the person is 21 years of age or older.
21    (a-5.2) No person shall cause electronic cigarettes
22ordered or purchased by mail, through the Internet, or other
23remote sale methods, to be shipped to anyone in the State other
24than (i) a distributor, as defined in Section 1 of the
25Cigarette Tax Act, Section 1 of the Cigarette Use Tax Act,
26Section 10-5 of the Tobacco Products Tax Act of 1995, and

 

 

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1Section 5 of the Preventing Youth Vaping Act, or (ii) a
2retailer, as defined in Section 1 of the Cigarette Tax Act,
3Section 10-5 of the Tobacco Products Tax Act of 1995, and
4Section 5 of the Preventing Youth Vaping Act.
5    (a-6) No person under 21 years of age in the furtherance or
6facilitation of obtaining any tobacco product, electronic
7cigarette, or alternative nicotine product shall display or
8use a false or forged identification card or transfer, alter,
9or deface an identification card.
10    (a-7) (Blank).
11    (a-8) A person shall not distribute without charge samples
12of any tobacco product, alternative nicotine product, or
13electronic cigarette to any other person, regardless of age,
14except for smokeless tobacco in an adult-only facility.
15    This subsection (a-8) does not apply to the distribution
16of a tobacco product, electronic cigarette, or alternative
17nicotine product sample in any adult-only facility.
18    (a-9) For the purpose of this Section:
19        "Adult-only facility" means a facility or restricted
20    area (whether open-air or enclosed) where the operator
21    ensures or has a reasonable basis to believe (such as by
22    checking identification as required under State law, or by
23    checking the identification of any person appearing to be
24    under the age of 30) that no person under legal age is
25    present. A facility or restricted area need not be
26    permanently restricted to persons under 21 years of age to

 

 

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1    constitute an adult-only facility, provided that the
2    operator ensures or has a reasonable basis to believe that
3    no person under 21 years of age is present during the event
4    or time period in question.
5        "Alternative nicotine product" means a product or
6    device not consisting of or containing tobacco that
7    provides for the ingestion into the body of nicotine,
8    whether by chewing, smoking, absorbing, dissolving,
9    inhaling, snorting, sniffing, or by any other means.
10    "Alternative nicotine product" does not include:
11    cigarettes as defined in Section 1 of the Cigarette Tax
12    Act and tobacco products as defined in Section 10-5 of the
13    Tobacco Products Tax Act of 1995; tobacco product and
14    electronic cigarette as defined in this Section; or any
15    product approved by the United States Food and Drug
16    Administration for sale as a tobacco cessation product, as
17    a tobacco dependence product, or for other medical
18    purposes, and is being marketed and sold solely for that
19    approved purpose.
20        "Electronic cigarette" means:
21            (1) any device that employs a battery or other
22        mechanism to heat a solution or substance to produce a
23        vapor or aerosol intended for inhalation;
24            (2) any cartridge or container of a solution or
25        substance intended to be used with or in the device or
26        to refill the device; or

 

 

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1            (3) any solution or substance, whether or not it
2        contains nicotine intended for use in the device.
3        "Electronic cigarette" includes, but is not limited
4    to, any electronic nicotine delivery system, electronic
5    cigar, electronic cigarillo, electronic pipe, electronic
6    hookah, vape pen, or similar product or device, any
7    components or parts that can be used to build the product
8    or device, and any component, part, or accessory of a
9    device used during the operation of the device, even if
10    the part or accessory was sold separately. "Electronic
11    cigarette" does not include: cigarettes as defined in
12    Section 1 of the Cigarette Tax Act; tobacco product and
13    alternative nicotine product as defined in this Section;
14    any product approved by the United States Food and Drug
15    Administration for sale as a tobacco cessation product, as
16    a tobacco dependence product, or for other medical
17    purposes, and is being marketed and sold solely for that
18    approved purpose; any asthma inhaler prescribed by a
19    physician for that condition and is being marketed and
20    sold solely for that approved purpose; any device that
21    meets the definition of cannabis paraphernalia under
22    Section 1-10 of the Cannabis Regulation and Tax Act; or
23    any cannabis product sold by a dispensing organization
24    pursuant to the Cannabis Regulation and Tax Act or the
25    Compassionate Use of Medical Cannabis Program Act.
26        "Lunch wagon" means a mobile vehicle designed and

 

 

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1    constructed to transport food and from which food is sold
2    to the general public.
3        "Nicotine" means any form of the chemical nicotine,
4    including any salt or complex, regardless of whether the
5    chemical is naturally or synthetically derived.
6        "Tobacco product" means any product containing or made
7    from tobacco that is intended for human consumption,
8    whether smoked, heated, chewed, absorbed, dissolved,
9    inhaled, snorted, sniffed, or ingested by any other means,
10    including, but not limited to, cigarettes, cigars, little
11    cigars, chewing tobacco, pipe tobacco, snuff, snus, and
12    any other smokeless tobacco product which contains tobacco
13    that is finely cut, ground, powdered, or leaf and intended
14    to be placed in the oral cavity. "Tobacco product"
15    includes any component, part, or accessory of a tobacco
16    product, whether or not sold separately. "Tobacco product"
17    does not include: an alternative nicotine product as
18    defined in this Section; or any product that has been
19    approved by the United States Food and Drug Administration
20    for sale as a tobacco cessation product, as a tobacco
21    dependence product, or for other medical purposes, and is
22    being marketed and sold solely for that approved purpose.
23    (b) Tobacco products, electronic cigarettes, and
24alternative nicotine products may be sold through a vending
25machine only if such tobacco products, electronic cigarettes,
26and alternative nicotine products are not placed together with

 

 

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1any non-tobacco product, other than matches, in the vending
2machine and the vending machine is in any of the following
3locations:
4        (1) (Blank).
5        (2) Places to which persons under 21 years of age are
6    not permitted access at any time.
7        (3) Places where alcoholic beverages are sold and
8    consumed on the premises and vending machine operation is
9    under the direct supervision of the owner or manager.
10        (4) (Blank).
11        (5) (Blank).
12    (c) (Blank).
13    (d) The sale or distribution by any person of a tobacco
14product as defined in this Section, including, but not limited
15to, a single or loose cigarette, that is not contained within a
16sealed container, pack, or package as provided by the
17manufacturer, which container, pack, or package bears the
18health warning required by federal law, is prohibited.
19    (e) It is not a violation of this Act for a person under 21
20years of age to purchase a tobacco product, electronic
21cigarette, or alternative nicotine product if the person under
22the age of 21 purchases or is given the tobacco product,
23electronic cigarette, or alternative nicotine product in any
24of its forms from a retail seller of tobacco products,
25electronic cigarettes, or alternative nicotine products or an
26employee of the retail seller pursuant to a plan or action to

 

 

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1investigate, patrol, or otherwise conduct a "sting operation"
2or enforcement action against a retail seller of tobacco
3products, electronic cigarettes, or alternative nicotine
4products or a person employed by the retail seller of tobacco
5products, electronic cigarettes, or alternative nicotine
6products or on any premises authorized to sell tobacco
7products, electronic cigarettes, or alternative nicotine
8products to determine if tobacco products, electronic
9cigarettes, or alternative nicotine products are being sold or
10given to persons under 21 years of age if the "sting operation"
11or enforcement action is approved by, conducted by, or
12conducted on behalf of the Illinois State Police, the county
13sheriff, a municipal police department, the Department of
14Revenue, the Department of Public Health, or a local health
15department. The results of any sting operation or enforcement
16action, including the name of the clerk, shall be provided to
17the retail seller within 7 business days.
18    (f) No person shall honor or accept any discount, coupon,
19or other benefit or reduction in price that is inconsistent
20with 21 CFR 1140, subsequent United States Food and Drug
21Administration industry guidance, or any rules adopted under
2221 CFR 1140.
23    (g) Any peace officer or duly authorized member of the
24Illinois State Police, a county sheriff's department, a
25municipal police department, the Department of Revenue, the
26Department of Public Health, a local health department, or the

 

 

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1Department of Human Services, upon discovering a violation of
2subsection (a), (a-5), (a-5.1), (a-5.2), (a-8), (b), or (d) of
3this Section or a violation of the Preventing Youth Vaping
4Act, may seize any tobacco products, alternative nicotine
5products, or electronic cigarettes of the specific type
6involved in that violation that are located at that place of
7business. The tobacco products, alternative nicotine products,
8or electronic cigarettes so seized are subject to confiscation
9and forfeiture.
10    (h) If, within 60 days after any seizure under subsection
11(g), a person having any property interest in the seized
12property is charged with an offense under this Section or a
13violation of the Preventing Youth Vaping Act, the court that
14renders judgment upon the
charge shall, within 30 days after
15the judgment, conduct a forfeiture hearing to determine
16whether the seized tobacco products or electronic cigarettes
17were part of the inventory located at the place of business
18when a violation of subsection (a), (a-5), (a-5.1), (a-5.2),
19(a-8), (b), or (d) of this Section or a violation of the
20Preventing Youth Vaping Act occurred and whether any seized
21tobacco products or electronic cigarettes were of a type
22involved in that violation. The hearing shall be commenced by
23a written petition by the State, which shall include material
24allegations of fact, the name and address of every person
25determined by the State to have any property interest in the
26seized property, a representation that written notice of the

 

 

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1date, time, and place of the hearing has been mailed to every
2such person by certified mail at least 10 days before the date,
3and a request for forfeiture. Every such person may appear as a
4party and present evidence at the hearing. The quantum of
5proof required shall be a preponderance of the evidence, and
6the burden of proof shall be on the State. If the court
7determines that the seized property was subject to forfeiture,
8an order of forfeiture and disposition of the seized property
9shall be entered and the property shall be received by the
10prosecuting office, who shall effect its destruction.
11    (i) If a seizure under subsection (g) is not followed by a
12charge under subsection (a), (a-5), (a-5.1), (a-5.2), (a-8),
13(b), or (d) of this Section or under the Preventing Youth
14Vaping Act, or if the prosecution of the charge is permanently
15terminated or indefinitely discontinued without any judgment
16of conviction or acquittal:
17        (1) the prosecuting office may commence in the circuit
18    court an in rem proceeding for the forfeiture and
19    destruction of any seized tobacco products or electronic
20    cigarettes; and
21        (2) any person having any property interest in the
22    seized tobacco products or electronic cigarettes may
23    commence separate civil proceedings in the manner provided
24    by law.
25    (j) After the Department of Revenue has seized any tobacco
26product, nicotine product, or electronic cigarette as provided

 

 

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1in subsection (g) and a person having any property interest in
2the seized property has not been charged with an offense under
3this Section or a violation of the Preventing Youth Vaping
4Act, the Department of Revenue must hold a hearing and
5determine whether the seized tobacco products, alternative
6nicotine products, or electronic cigarettes were part of the
7inventory located at the place of business when a violation of
8subsection (a), (a-5), (a-5.1), (a-5.2), (a-8), (b), or (d) of
9this Section or a violation of the Preventing Youth Vaping Act
10occurred and whether any seized tobacco product, alternative
11nicotine product, or electronic cigarette was of a type
12involved in that violation. The Department of Revenue shall
13give not less than 20 days' notice of the time and place of the
14hearing to the owner of the property, if the owner is known,
15and also to the person in whose possession the property was
16found if that person is known and if the person in possession
17is not the owner of the property. If neither the owner nor the
18person in possession of the property is known, the Department
19of Revenue must cause publication of the time and place of the
20hearing to be made at least once each week for 3 weeks
21successively in a newspaper of general circulation in the
22county where the hearing is to be held.
23    If, as the result of the hearing, the Department of
24Revenue determines that the tobacco products, alternative
25nicotine products, or the electronic cigarettes were part of
26the inventory located at the place of business when a

 

 

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1violation of subsection (a), (a-5), (a-5.1), (a-5.2), (a-8),
2(b), or (d) of this Section or a violation of the Preventing
3Youth Vaping Act at the time of seizure, the Department of
4Revenue must enter an order declaring the tobacco product,
5alternative nicotine product, or electronic cigarette
6confiscated and forfeited to the State, to be held by the
7Department of Revenue for disposal by it as provided in
8Section 10-58 of the Tobacco Products Tax Act of 1995. The
9Department of Revenue must give notice of the order to the
10owner of the property, if the owner is known, and also to the
11person in whose possession the property was found if that
12person is known and if the person in possession is not the
13owner of the property. If neither the owner nor the person in
14possession of the property is known, the Department of Revenue
15must cause publication of the order to be made at least once
16each week for 3 weeks successively in a newspaper of general
17circulation in the county where the hearing was held.
18(Source: P.A. 101-2, eff. 7-1-19; 102-538, eff. 8-20-21;
19102-575, eff. 1-1-22; 102-813, eff. 5-13-22.)
 
20    Section 99. Effective date. This Act takes effect upon
21becoming law.